Friday, January 25, 2013

This is the fifth in a series of post on this topic. To see the previous post, follow this link, which will then link to the other post. Rodby Gene Wisdom

Gene Wisdom

I find myself
disagreeing here with my friend, Tracy Tarum, on an issue dear to both of us:
our Second Amendment right to keep and bear arms.While I agree with most of what Mr. Horwitz argued in response to
Mr. Tarum, I hope to address this from a more originalist standpoint and rely
on the Framers and their sources rather than statutory or case law.Let me start out in agreement with Rep. Carr
that the Second Amendment is not meant to protect hunters.It was meant to ensure the security of the
citizenry from assault and tyranny.Elbridge
Gerry in the First Congress debating what became the Second Amendment asked:

“What, sir, is the use of a militia? It is to
prevent the establishment of a standing army, the bane of liberty. Now, it must
be evident, that, under this provision, together with their other powers,
Congress could take such measures with respect to a militia, as to make a
standing army necessary. Whenever Governments mean to invade the rights and
liberties of the people, they always attempt to destroy the militia, in order
to raise an army upon their ruins….”

But is that
right absolute?William Blackstone
didn’t think so.In his Commentaries on the Laws of England,
published in 1776 and very influential and heavily read in our early history by
our Founders, he wrote

“The fifth and last auxiliary right of the subject,
that I shall at present mention, is that of having arms for their defense,
suitable to their condition and degree, and such as are allowed by law. Which
is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due
restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are
found insufficient to restrain the violence of oppression.” (emphasis
added)

My basic point
here is that we are far from a position where our laws are “insufficient
to restrain” tyranny.

Now,
do I defend the federal government’s right to pass legislation contemplated in Tennessee HouseBill 42?That bill is designed to prohibit federal enforcement
of “[a]ny federal law, statute, rule, regulation, or executive order implemented
or executed on or after January 1, 2013” which “attempts to: (1) Ban or
restrict ownership of a semi automatic firearm, firearm accessory, or
ammunition; or (2) Require any firearm, firearm accessory, or ammunition to be
registered in any manner.”If such
legislation indeed were aimed at semi-automatic firearms I believe it would be
unconstitional (a) for vagueness and (b) as a general restriction of a
fundamental right.Semi-automatic
weapons includes virtually all handguns.I believe such federal legislation would be patently
unconstitutional.

This
bill, however, is the wrong way to deal with it.First of all, the bill itself has problems
with its language.It targets
legislation passed only after January 1, 2013.What if such laws are identical with previous laws, such as the previous
assault weapons ban?What if an
executive order references existing law and prescribes rules for federal agency
enforcement? What if such law expands
background checks to provide further protections against possession by those
insane or mentally unfit?Such checks
would surely, on the face of them, “restrict” ownership or possession.Paragraph (b) of the bill would prohibit any
firearm dealer in the state from attempting to enforce such restriction no
matter how reasonable or consistent with existing law.

Mr.
Tarum, in his response, accuses Mr.
Horwitz, incorrectly, of “not once” referring to original sources when the
truth is plainly otherwise.Horwitz
referred to the history of the Kentucky (Thomas Jefferson) and Virginia (James
Madison) Resolutions reminding us that the more radical Kentucky Resolutions
were not only ignored by the other states but repudiated by some and that this
contrary view has remained accepted throughout our history.Additionally, Horwitz pointed to the
Federalist Papers, including Number 78, in which Alexander Hamilton put forward
the doctrine of judicial review.Though
Tarum may not value Hamilton’s influence (I’m not a big fan of Hamilton myself)
he is certainly to be counted among the Framers of the Constitution.

We
have been through worse, even in our Founding.John Adams’ Sedition Act, passed by a Federalist Congress, directly
attacked the First Amendment, making it illegal to criticize the
President.Journalists (and other
citizens, if I recall correctly) were imprisoned.The discussion has been around the right of
gun ownership to protect other fundamental rights.Well, surely, free speech is to be counted
highly among those “other rights”.It
came under attack by the federal government and those responsible were
repudiated.Adams was turned out of
office as were the Federalist majorities in both houses.

Our
Constitution provides the means to overturn attacks on our rights to gun
ownership.This remains available
through: (1) overturning such federal law, rule, regulation, or executive order
through further laws passed by a still-elected Congress; (2) “throwing the bums
out” as the voters did to Adams and company; and (3) appeal to the federal
courts.(Another avenue, by the way,
used to address the abusive Sedition Act was President Jefferson (who defeated
Adams)’s pardon of those convicted under it.)Though Tracy is dismissive of judicial review, it remains a means of
overturning unconstitutional legislation.

While I believe that judicial review is a valid power of the Supreme Court,
both under the terms of the Constitution (“cases arising under the
Constitution”) and, as noted, as explained by Hamilton, I have not always
agreed with its exercise.I could cite a
long list of cases where I believe the Court has been grievously wrong,
beginning of course with Dred Scott,
and Plessy v. Ferguson’s “separate
but equal” but through to the present day with such decisions as Everson v. Board of Education’s “wall of
separation” and more recent cases such as Roe
v. Wade (and much of its progeny) and Lawrence
v. Texas’s finding of a constitutional right to homosexual sodomy.Just for starters.But it’s here and it is available and, in
fact, the Supreme Court has done pretty well by gun rights in its recent
decisions in McDonald v. City of Chicago
and D.C. v. Heller.Neither one perfect but both very well
grounded.

I
would argue that a fourth possible method of resistance exists: impeachment of
the President for the “high crime and misdemeanor” of infringing on fundamental
rights.While I don’t believe that
impeachment should be lightly considered or become a political tool, as I think
it arguably was used against Bill Clinton, James Madison argued that it should
be available as a protection against “negligence or perfidy of the Chief Magistrate.”

Those
means do not include state or local police officers arresting federal law
enforcement officers.I agree with the
motivations behind the bill—protect our fundamental rights, limit the national
government to its enumerated powers, preserve the states police powers under
the Tenth Amendment.And as Tracy well
knows, I’m certainly no fan of this President or Administration.Barack Obama’s agenda is one of socialism, of
making a mockery of Constitutional limitations, of attacking the family, and of
weakening this country and its military perhaps irreparably.The program he outlined in his inaugural
address was described even by some in the liberal mainstream media as to their
Left.That’s saying a lot.

But
as Rod put it so well in his essay this is not
best dealt with by having Barney arresting federal agents.That is a recipe for chaos.First of all, as Mr. Horwitz points out, it
is rightly against federal law, the Supremacy Clause, and years of our
history.Not even George Wallace in his
stand in the schoolhouse door sought to arrest the federal officers whom he
confronted.He moved aside after his
speech.Secondly, it invites federal
agents seeking federal troops to put down what would essentially be a
state-ledinsurrection.Our Constitution was designed to protect
liberty and preserve order.HB 42’s
solution is an attack on that Constitutional order when other peaceful,
orderly, available and prescribed methods for resisting federal encroachment
exist.

In
concluding, I can’t ignore the repeated cheap shots and insults by Mr. Tarum
against his opponent.He justified it by
the “well, he did it” defense, arguing that his comments were comparable to Mr.
Horwitz’s against Glen Hughes and Tami Kilmarx.On the contrary, Horwitz’s references to these two weren’t snide,
belittling remarks.Tracy, you’re better
than that.

Gene Wisdom is an Alabama native but has lived in the Nashville area
since 2007. He, his wife Vicki, and their dog Savannah live near
Nolensville. Gene is a conservative activist and leads the Conservative Fusion Book Club.

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As the author of A Disgruntled Republican I often post item which I think may be of interest to the conservative, Republican, libertarian or the greater community. Posting of a press release or an announcement of an event does not necessarily indicate an endorsement. Rod